Language Act review urges clarifications to law, go-slow approach on nursing homes

A 10-year review of New Brunswick's Official Languages Act is recommending no sweeping changes to the legislation but a series of clarifications to how it applies to civil servants, municipalities and regional health authorities.

The report released Wednesday proposes one major amendment: to include nursing homes in the act.

But the authors are urging a go-slow approach in that sector given staffing shortages, long waiting lists and the unilingual make-up of many rural areas of the province.

"We are of the opinion that rigid new linguistic requirements would place many nursing homes in immediate noncompliance with legislation," says the report by Judge Yvette Finn and former deputy minister John MacLaughlin.

Instead they recommend "a strategic approach" to improve bilingual capacity in the province's 70 licensed nursing homes and 357 special care homes and to ensure the language spoken by a new nursing home resident "be taken into account" by authorities.

"We see this as a matter of human dignity," MacLaughlin told reporters.

"To be able to communicate in the language that you've lived in your whole life, particularly when you're vulnerable, or you're being misplaced or you suddenly go from being very independent to dependent, language is something that I think is very important to us."

But he said a gradual approach is the most realistic way to go about it.

"We think that there needs to be a strategy put in place to help nursing homes to be better equipped to provide those services, and in some parts of the province that's going to be a bigger challenge."

Including nursing homes in the act has been an issue for years and retired law professor Michel Doucet, a language law expert, said there's a legal argument that they're already subject to it.

"The nursing homes are acting for the government and in this capacity they should be obliged to respect the Official Languages Act," he said.

The report also proposes:

• Clarification of the language requirements for provincial civil servants to help them deliver services in both languages as required by the law and make them more competitive for promotions.

• Adopting "all necessary measures" so that provincial employees can work in their choice of English or French.

• Requiring regular reviews of census data so it's clear which municipalities have at least 20 per cent of the population speaking the minority official language, a threshold that triggers a municipal bilingualism requirement.

• Ensuring that new "rural districts" that will be created through the province's local government reform be covered by the act and its 20-per-cent threshold.

"While we have recommended some changes to the act itself, most of our observations and suggestions have to do with its implementation," the report says.

"In particular, we have focused on ways to clear up misunderstandings, to facilitate more streamlined and effective service delivery, and to implement incremental steps" toward making the act the "cornerstone" of the province's bilingual status.

"They're being very cautious on approaching it," Doucet said.

The two commissioners also say the act should be amended to make it clear that it applies to regional health authorities, that it requires them to actively offer service in both languages and that it extends to third parties such as Ambulance New Brunswick and the Extra-Mural program.

The existing languages act already includes sections saying those requirements apply to all government institutions, and a 2019 Court of Queen's Bench ruling about Ambulance New Brunswick underscored that.

But Finn said the law can be "confusing" and it's worth making it more clear.

The report also rejects any rollback of existing bilingualism requirements, noting New Brunswick's official bilingualism is also part of the Charter of Rights and Freedoms.

"Therefore, suggesting changes that call into question bilingualism as a foundation of our province is not an option being considered by our commission, the report says.

The once-a-decade review is required by the act itself and was launched in the wake of a series of language controversies, including a unilingual commissionaire working at the front desk of a government building losing hours, and bilingualism requirements for ambulance paramedics.

That fuelled some anti-bilingualism sentiment.

"A lot of it is based on fear," MacLaughlin said. "A lot of it is based on mistrust. A lot of it is based on people just wanting a fair deal and feeling they're not getting one if they see somebody else getting what they feel is a better deal."

Premier Blaine Higgs also asked the commissioners to look at second-language education in the province's schools. MacLaughlin and Finn say they'll issue a separate report on that subject.

It is recommending changes to the way the government oversees bilingualism requirements, including creating a standing committee of the legislature and a new department that would become a clearing house for the law's implementation.

That department would report directly to the premier, who by law is responsible for administering the act.

Enforcing outcome of complaints

The commissioners say they heard different suggestions about the powers of the Commissioner of Official Languages, which now involve investigating complaints and making recommendations without any enforcement powers.

Her role "risks becoming a purely theoretical and inconsequential exercise" unless the premier, who by law is responsible for the Official Languages Act, is required to respond to her reports within a set time frame.

Current commissioner Shirley MacLean proposed that the law gives her the power to enter into binding compliance agreements with the province when it hasn't followed the law.

But Finn and MacLaughlin say they were reluctant to go along with that idea because it's the government's responsibility to enforce the act.

"We must avoid the perception that the commissioner is responsible for the act, thereby absolving the government of its responsibility," they write.

Instead they're recommending a 90-day time limit for the premier to table a response to the commissioner's annual reports.

The report says more than 6,000 people responded to a questionnaire as part of the review, and the commissioners held 80 meetings with 200 people and 52 stakeholder groups.